Week 3
Week 3
Week 3
Policy – PART IV
Article 36- 51
• Features of Directive Principles
• Classification
• Relationship between FR and DPSP
• Idea taken from Irish Constitution
• Dr.B.R.Ambedkar described these principles as
“Novel Features” of the Indian Constitution
and acts as an instrument of instruction to the
State.
• Granville Austin – American historian on
Indian Constitution – describes DPSP as
“Conscience of the Constitution”.
Features of DPSP
• Denotes the ideals of the State – Keep in mind
while formulating the policies and enacting laws.
• It is a set of special provisions created by the
makers for giving proper direction to the States to
act.
• Constitutional Instruction or recommendations to
the State in legislative, Executive and
Administrative matters.
• It aims at realising the high ideals of Justice,
liberty, equality and fraternity as outlined in
Preamble.
• Promotes Socio-Economic Justice
• Political democracy would be useless without economic
democracy.
• Concept of Welfare State
Was this a new concept under the Constitution of India?
• It resembles the Government of India Act, 1935.
• DPSP are non-justiciable in nature – not legally enforceable
by the courts for their violation.
• Duty of the State to apply these principles in making laws.
• Though non-justiciable in nature, the laws can be
challenged if it violates Fundamental Rights.
Classification
• Social and Economic Charter
• Social Security Charter
• Community Welfare Charter
Others:
• Socialist Principles
• Gandhian Principles
• Liberal –Intellectual Principles
Social and Economic Social Security Charter Community Welfare
Charter Charter
Karthik Shiva
Assistant Professor of Law
VIT SOL
UNION GOVERNMENT
• Three Wings of the Govt – Functioning – Role and Responsibilities – Separation of Powers v. Division of
Powers
“Under the draft constitution the President occupies the same position as the
King under the English Constitution. He is the head of the state but not of the
Executive. He represents the Nation but does not rule the Nation. He is the
symbol of the Nation. His place in the administration is that of a ceremonial
device on a seal by which the nation's decisions are made known.”
PRESIDENT OF INDIA
• Art. 52-62 – Deals with the President – Election, Qualification, Terms and
Impeachment
• It provides that such exercise shall be in accordance with the constitution – Limitation of executive
power
• Art. 73 – Executive power of the Union a) co-extensive with power of the Parliament to make laws
b)
POWERS OF THE PRESIDENT
The President of India can be broadly classified under the following heads;
a) Executive Powers
b) Legislative Powers
c) Judicial Powers
d) Military Powers
e) Diplomatic Powers
f) Emergency Powers
EXECUTIVE POWERS OF THE
PRESIDENT
• Power to make recommendation for a Bill for Reorganisation of States [Proviso to Art.
3]
• Power to summon or prorogue the Houses of the Parliament [Art. 85(1) & Art. 85(2)(a)]
• The President represents India in international forums and affairs where such a function is
chiefly ceremonial.
• The President may also send and receive diplomats, i.e. the officers from the Indian Foreign
Service. The President is the first citizen of the country.
• All international treaties and agreements are negotiated and concluded on behalf of the
President.
• In practice, such negotiations are usually carried out by the Prime Minister along with his
Cabinet (especially the Foreign Minister).
• The President is the Supreme Commander of the Indian Armed Forces. (Art. 53)
• The President can declare war or conclude peace, on the advice of the Union Council
of Ministers headed by the Prime Minister.
• The President also appoints the chiefs of the service branches of the armed forces.
• All important military treaties and contracts are made in the President's name
EMERGENCY POWERS OF THE
PRESIDENT
• Impeachment – Reasoning for violation of the Constitution –Art. 61(1) – Charge in either house of
the Parliament – applies only for President
• Step 1 - Requirement for a Charge >> 14 Days’ Notice in writing signed by minimum 1/4th
Members of that House + Resolution has to be passed by 2/3rd Majority of that House
• Step 2 – On basis of charge – Other House to investigate – President shall have right to appear
and be represented at such investigation – Investigating House to pass the impeachment
resolution by 2/3rd Majority – charge sustained – Effect of Removal
Powers and Position of President of India
In Indian Parliamentary practice, the President is the nominal executive or a Constitutional ruler. He is
the head of the nation, but does not govern the nation. Our Union Council of Ministers headed by the
Prime Minister is the real executive. And the President rules the country on the advice of the Prime
Minister and his colleagues.
Powers: We shall now discuss in details, the powers and functions of the President of India in the light
of the above discussion. The powers and the functions of the President of India may be classified under
five heads, viz., and executive, legislative, financial, judicial and emergency.
1. Executive Power: The President of India is the head of the executive of the Union Government.
Therefore, all executive powers are vested in the hands of the President. He can exercise these powers
either directly or through the subordinate officers.
• According to the Constitution of India, all executive action is also taken in his name. The
President appoints the Governors of the States, the Judges of the Supreme Court and High
Courts of the States. The Prime Minister of India is appointed by the President. The President
also appoints other Ministers in consultation with the Prime Minister.
• The Constitution of India empowers the President to appoint the important officers of the Union
Government including the Attorney-General for India, the Comptroller and Auditor-General of
India, the Chairman of the Finance Commission, the Election Commissioners etc.
• The President is responsible for the administration of the Union Territories. For this reason, he
appoints Chief Commissioners and Lieutenant Governors of the centrally administered areas.
• The President has been empowered to set up a Commission for the settlement of disputes
relating to the supply of water between two or more States.
• Moreover, the Constitution has authorized the President to establish an Inter-State Council to
enquire into disputes that may arise between, the States as well as to discuss the matters of the
common interests between the Union and the States.
• The President alone can remove the Council of Ministers, the Governors of States and the
Attorney-General for India.
• The President of India is Supreme Commander-in-Chief of the Army, Navy and the Air Force of
the Union. He has the power to declare war.
• The President also enjoys the diplomatic power. He appoints the diplomatic representatives of
India to the foreign States. He also receives the credential letters of the diplomatic
representatives of other States.
• The President represents India in international affairs. He has the power to conclude treaties
with foreign States.
2. Legislative Powers: The President of India also enjoys legislative powers. He is an integral part of
Indian Parliament. Parliament consists of the President and two Houses—the House of the people (Lok
Sabha) and the Council of States (Rajya Sabha).
• The President has the power of to summon and prorogue both the House of Parliament. He can
also dissolve the House of the People before the expiry of its term.
• The Constitution of India empowers the President to deliver an address to the Parliament at the
commencement of the first session every year. He may also send messages to Parliament.
• The President nominates two members to the Lok Sabha from the Anglo-Indian Community
and twelve members to the Rajya Sabha from among the persons who have acquired special
knowledge in art, science, literature and social service.
• In India, a public bill cannot become an act without the assent of the President. A bill passed by
the Union Parliament is sent to the President for his assent. The President may give his assent to
the bill or may withhold his assent from the bill or he may return the bill to Parliament for its
reconsideration. If the bill is again passed by both Houses of Parliament, the President shall
have to give his assent.
• When the Parliament is not in session, the President may issue an ordinance. It has the same
force as the law or Parliament. But it must be placed before the Parliament when it again
assembles. If it is then approved by both the Houses of Parliament, it will cease to operate after
six weeks of the date of meeting of Parliament. And the President can call a joint session of
both Houses of Parliament to resolve a constitutional deadlock over a public bill.
3. Financial Powers: The President of India also exercises financial powers. No money bill can be
introduced in Parliament without the recommendations of the President.
• According to the Constitution of India, the Annual Financial Statement is placed by the
President before both the Houses of Parliament. This statement shows the estimates of revenue
and expenditure of the central Government for the next year.
• It may be pointed out that the proposal for taxation and expenditure cannot be made without the
approval of the President.
4. Judicial Powers: The President of India grants, pardons, reprieves or remissions of punishment to
any person who has been convicted by a Court of Law.
5. Emergency Powers: The President of India exercises extra-ordinary powers in times of emergency.
Proclamation of National Emergency by the President of India: The President of India may issue a
Proclamation of National Emergency when the security of India or any part thereof is threatened by
war, armed rebellion or external aggression. Such a Proclamation of Emergency may remain in force
for an indefinite period. During a Proclamation of National Emergency, the executive power of the
States is to be exercised in accordance with the directions given by the Central Government. Parliament
has the power to make laws on the subjects enumerated in the State List. The right to freedom of
speech and expression, freedom to form association, freedom to practice and profession, etc., embodied
in Article 19 shall remain suspended.
Proclamation of Financial Emergency by the President: The President may also issue a
Proclamation of Financial Emergency if he is satisfied that the financial stability of India is threatened.
This type of emergency may continue to remain in force for an indefinite period. The Central
Government may give directions to the States for canons of financial propriety. All money-bills passed
by the State Legislatures are to be reserved for the consideration of the President.
Position: Thus the President of India has been given wide and far-reaching powers which he enjoys
both during normal and emergency times. But after the passing of the Constitution Forty-Second
(1976) and Forty-Fourth (1978) Amendment Acts, the President of our Republic has become a
Constitutional figurehead and nothing beyond that.
Today, President’s position is one of great authority and dignity, but at the same time strictly
constitutional. Thus the President is bound in every case to act on the advice of his Prime Minister and
other Ministers who are responsible to the Lok Sabha and responsive to the public opinion.
In short, the powers really reside in the Ministry and the Parliament and not in the President as such.
He has no discretion in our Parliamentary system of government.
The Supreme Court through various decisions has upheld the position that the President is a
constitutional head and as such he is as much bound by the advice of his Ministers during emergency as
during normal times.
For example, the President can declare a proclamation of the National Emergency (Article 352) only
after receiving a written communication of the decision of the Union Cabinet. If the President abuses
his powers, he can be removed from office by a process of impeachment.
It does not, however, mean that the President of India is a magnificent cipher or a mere rubber stamp.
Unlike the British Monarchy which is hereditary, the President of our Republic is an elected Head of
the State. In our coalition politics, there are some grey areas where the President may still have to use
his own judgment and wisdom. These are:
• Appointment of the Prime Minister,
• Dismissal of the Union Ministry,
• Dissolution of the Lok Sabha, and,
• Seeking information on all matters of administration and legislation from the Prime Minister
etc.
In some such situations, the role of our President may become most crucial and decisive. However, the
President has to be free from all political affiliations. He is expected to act with complete constitutional
rectitude and impartiality. The nation is expected to be benefitted by his wise leadership and
constructive role.
In short, the President of India is the symbol of national unity, magnet of loyalty and apparatus
of ceremony.
Federalism – Centre State
Relationship
• What is Federalism/ Federal Structure?
• Why India adopted Federalism?
• What was the views of various eminent
jurist/historians?
What is Federalism/ Federal Structure?
Nature of Indian Constitution
Two classification (system of government or form of
government):
• Unitary
• Federal
Is Indian Constitution Federal in nature or Unitary in
nature?
--------- Before finding the answer to the said
question let us discuss the definition of the terms
Unitary and Federal.
Definition:
Unitary Government – all the powers are vested in the
national government and the regional governments
derive their power from the national government.
Eg: Britain , Japan, Spain, China etc
Federal Government – Powers are divided between the
national government and the regional governments by
the Constitution itself and both operate in their
respective jurisdictions independently.
Eg: US, Australia, Canada, Russia etc
Why India adopted Federalism?
• Help in addressing the diversities
• Suitable for a country of size of India
• Would help address the fissiparous tendencies
by retaining the autonomy of the states.
• Powers of the local self government were also
protected.
• Essentials of Federalism:
1. Division of Powers
2. Supremacy of Constitution
3. Rigidity of Constitution
4. Written Constitution
5. Authority of Courts
• Essentials of Federalism:
1. Division of Powers – 7th Schedule – Three list
- Union List (97 entries) - National importance such as
defence, foreign affairs etc
- State List (66 entries) – look after the matters of regional
importance such as Public order, Health
- Concurrent List (47 entries)
- Residuary power given to centre
2. Supremacy of Constitution – laws enacted must confirm
to the provisions of Constitution
3. Rigidity of Constitution – Amendment procedure in tough
4. Written Constitution – lengthiest, specifies
the structure, organisation, powers and
functions of both central and state government.
5. Authority of Courts – independent judiciary-
two reasons
a) to protect the supremacy of the
Constitution
b) to settle the dispute between centre and
state
• Unitary features:
- Strong Centre’
- Single Constitution
- Flexibility of the Constitution etc
Views of Eminent jurist/ historians-
Critical evaluation
• A federal constitution envisages a demarcation of
governmental functions and its powers between the centre
and the state as sanctioned by the constitution which is a
written document.
Is Indian Constitution purely federal in nature?
• Prof. Wheare : “ The Constitution establishes a system of
government which is almost quasi- federal…….. a unitary
State with subsidiary federal features rather than a federal
State with subsidiary unitary features”
• Sir Ivor Jennings has characterized it as “a federation with a
strong centralizing tendency”.
• Granville Austin called the Indian Federalism as a
“Cooperative Federalism”.
• American Constitution is truly federal type.
• Framers of Constitution took note of the
practical needs of the country designed on
federal structure ‘not on the footing that it
should confirm to some theoretical, definite
or standard pattern, but on the basis that it
should be able to subserve the need of the
vast and diverse country like India’.
Dr.Ambedkar on Federalism – “The basic
principles of federalism is that the legislative
and executive authority is partitioned between
the centre and States and not by law or by the
Centre but the Constitution itself.. The Centre
and States are co-equal in this matter”
• Thus , the Indian Constitution is mainly federal
with unique safeguards for enforcing national
unity and growth.
Unitary features in Federal structure
1. Appointment of Governors – Article 155 and
156
2. Parliament’s power to legislate in the
national interest – Article 249
3. Parliaments powers to form new states and
alter boundaries of existing States – Article 3
4. Emergency Provisions – Article 352, 356, 360
Centre –State Relationship
• Legislative – Art 245 to Art 255
• Administrative – Art 256 to Art 263
• Financial – Art 268 to Art 293
Legislative – Art 245 to Art 255
• 1.Extent of laws made by Parliament and by the
Legislatures of States - Parliament may make laws
for the whole or any part of the territory of India,
and the Legislature of a State may make laws for
the whole or any part of the State.
• Exception – Parliament can make extra territorial
legislation. It can be applicable to Indian citizens
and their property in any part of the world.
• 2. Subject-matter of laws made by Parliament
and by the Legislatures of States – Three list
under Art 246
• Union List -97 entries
• Concurrent List – 66 entries
• State List- 47 entries
• 3. When can Parliament enact laws in the
state field?
- National Interest – Art 249 - resolution must
be supported by 2/3rd of the members present
and voting.
- One year – further period of one more year
- Proclamation of Emergency – Art 250 -
- When states make a request – Art 252 -One
year – further period of one more year
• Art 254. Inconsistency between laws made by
Parliament and laws made by the Legislatures
of States – Doctrine of Repugnancy
• Which will prevail? – Central Act will prevail
and Legislature of the State shall, to the extent
of the repugnancy, be void
• Art 254 (2) – Reserved for assent of president
– State Act will prevail
Administrative – Art 256 to Art 263
Article 256 – Obligation of States and the Union:
- State should ensure the compliance with the laws made
by the Parliament
Article 257 – Control of Union over states in certain cases:
- Executive power of states shall be exercised so as not
to impede or abridge the executive power of the union
- Construction and maintenance of means of
communication, declared to be of national or military
importance
- Measures to be taken for the protection of railways
within the state.
• All India Services
• Public Service Commissions
Financial – Art 268 to Art 293
CATEGORY LEVIED COLLECTED